He had been detained by the Lebanese judicial authorities in September 2005 until April 2009, when the case was transferred to the STL. He then remained in custody of the Tribunal for about ten days and later released by the pre-trial judge.
The Tribunal has jurisdiction to rule on the applicationYesterday, the pre-trial judge of the STL held that the Tribunal has jurisdiction to rule on the application.
In the judge’s view, should the Tribunal find itself without jurisdiction to rule on the application, the Tribunal would deprive the applicant of any possibility to have his basic right vindicated by a judge. It would thus exclude the applicant from the right to effective judicial protection.
The applicant has standingThe pre-trial judge also held that the applicant has standing to seize the Tribunal of the issues relating to the deprivation of liberty to which he was subjected.
The right of access to the criminal fileThe judge recalled that an accused has the right to have access to the documents in his own criminal file.
Accused personAlthough the person in this case was not formally indicted, the judge referred to the ECtHR jurisprudence according to which the concept of the indictment is to be interpreted with a certain amount of flexibility and should not be understood in its formal sense, but as meaning “’the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’.
The judge emphasised that, according to that jurisprudence, this definition also corresponds to the test whether the situation of the suspect has been substantially affected.
Further, according to the judge, the rights of defence continue to exist even if the person who has been the subject of a criminal investigation is no longer formally accused or has been discharged.
The judge opined that the same is true of the right of access to the criminal file, which does not cease to exist upon release of the individual.
The basic right to be able, if appropriate, to obtain compensation for prejudice suffered by way of an unlawful detention must have as a consequence the right of access to the documents in the case file. Otherwise it would not be possible to prove the unlawful nature of the detention.
The right of access is not absoluteHowever, the judge recalled that the right of access to the criminal file is not an absolute. This right can be subject to limitations.
In particular, it can be limited in cases where it might compromise an ongoing or future investigation, undermine fundamental interests, such as the physical well-being of persons concerned by those documents, or affect national or international security. These limitations can also stem from difficulties inherent to the conduct of terrorist investigations.
The judge noted that in some cases, in order to resolve these difficulties, it was accepted that this right was respected even if access to the file was limited to the counsel of the accused alone.
In some instances it is necessary for third parties to go through competent national authorities in order to make requests for access to documents.
Accordingly, the pre-trial Judge invited the Prosecutor to inform him, in particular, whether the above limitations or restrictions apply to the case and what form should access to the file take.
Lebanon, Order Relating to the Jurisdiction of the Tribunal to Rule on the Application by Mr El Sayed Dated 17 March 2010 and whether Mr El Sayed has Standing before the Tribunal, Pre-Trial Judge, Case No. CH/PTJ/2010/005, 17 September 2010See also "STL: a former detainee has the right to request access to the documents in the case, but the access can be limited".